Egyptian High Court Bans Removal of Martyr Memorials
On May 20, 2017, Egypt’s High Administrative Court (First Division) issued a historic ruling. The ruling set down the values of loyalty, appreciation, and recognition for the Egyptian Army’s martyrs of the 1973 October War. Addressing the state’s branches and institutions, as well as its citizens, the ruling drew attention to the importance of safeguarding these noble values towards those who sacrificed their lives defending their homeland, its honor, and all that the nation holds sacred. What is striking is that the ruling was not only devoted to the martyr’s right to remembrance; it also lays out a lengthy opinion about upholding the national values for which the martyrs allegedly died, starting with the values of democracy and pluralism.
1- Events Leading up to the Case
The High Administrative Court issued its ruling on an appeal that had been made against a ruling by the Administrative Court in Menoufia (First Division). The original ruling, on case no. 167 of judicial year 5, was handed down on November 20, 2007. The appeal had been brought against the president of the republic, supreme commander of the armed forces, the governorate of Menoufia, the head of the Quesna municipal council, and the military advisor of the Menoufia governorate.
The facts of the case in question can be summarized as follows. A memorial to the martyrs of the October 6, 1973 war was moved from a public square on Army Street in the city of Quesna to the Benin Secondary School. It was moved according to a decision made by the head of the local government administration, the city of Quesna, and the military advisor of the Menoufia governorate. A brother of one of the martyrs brought a lawsuit demanding that the decision to move the memorial be reversed. He also sued, unsuccessfully, for compensation due to damages he suffered as a result of the memorial’s removal from its original location. The plaintiff explained that the memorial had been moved from a place frequented by everyone, to a school where nobody can see it except those who have the right to enter. In its place, the local government administration had installed a public water foundation. The local Administrative Court in Menoufia (First Division) responded to his lawsuit with a number of legal opinions, the most prominent of which was that the movement of the memorial from the square had in fact increased its visibility. Eventually, Egypt’s High Administrative Court agreed to hear the case.
2- The Court’s Statement and Legal Opinions
The High Administrative Court issued a ruling to reverse the decision that the plaintiff had appealed along with its consequences. It rejected the demand for compensation, on the basis that the best form of compensation for the plaintiff was the reversal of the decision and its consequences. The reversal called for the memorial to Quesna’s martyrs to be erected in the most prominent place in the city, and that it should bear the names of all martyrs from the district. The High Administrative Court gave the following reasons for overturning the lower court’s ruling.
“Divine law, in its wisdom, honors martyrs and elevates the status of martyrdom in several instances in the Holy Qur’an.”;
“Lawmakers drew inspiration and direction from divine guidance when they required that the state honor the nation’s martyrs, in gratitude for the great sacrifices they have offered by giving the most precious and valuable thing they had.” It is worth noting that the court went into great detail enumerating the reasons for which the martyrs died. The reasons for their sacrifice are not limited to, “liberating the nation’s soil from the invader or occupier, or saving it from disasters and returning it to an normal state of safety, security, calm, and stability”. In addition to these, the court referred to “preserving the nation’s diversity and uniqueness, and the cohesiveness of its factions, parties, and constituents during times of divisiveness and discord”. It also mentioned reasons including, “the establishment of a truly democratic political system to replace rule by a single individual, family, organization, or party, with the goal of opening the door of political participation to all citizens on the basis of political pluralism, the separation and balance of powers, the peaceful transition of power, making power inseparable from responsibility, and respect for human rights and freedoms”. Thus, it appeared that the ruling was referring to all sorts of martyrs who have died for Egypt;
“Given the deep ancestral roots, character, and time-honored history of the Egyptian people, their descendants cannot forget the martyrs who performed the duty entrusted to them in defense of the nation’s land, honor, and sanctities; mosques and churches alike. There can be no comparison between those who act only for themselves, and those who sacrifice their lives for the sake of others. It has therefore been the state’s duty to honor the nation’s martyrs. Yet, this honor remains incomplete so long as the path of the martyrs is not followed, their ideas are not enacted, and their hopes do not become a tangible reality. The state that erases all traces of its martyrs, or buries their ideas, or squanders their aspirations is wronging its martyrs. Such a state is disregarding their sacrifices and does not deserve them.”; and
“The state shall honor its most noble, establishing lofty and powerful principles and values. In the souls of its current and future citizens, it shall instill its gratitude for those who died so that the nation might live. It shall uphold and spread the values of altruism, self-sacrifice, patriotism, and commitment… Thus, the state has an obligation and a duty to enact legislation that fulfills its constitutional obligations as set down in Article 16 of the current Constitution to honor the martyrs of the nation; and, to establish an independent body to manage their affairs and to care for their families, giving them the appreciation they deserve. At a minimum, this means adorning public squares with memorials to these martyrs in fitting locations, to stand as examples of the state’s gratitude towards those who have redeemed it and made sacrifices on its behalf.”
3- Lessons to be Learned from the Ruling
This ruling, along with others that have been issued by the First Division of the High Administrative Court, demonstrate the importance of the administrative judiciary’s role not only on a national level, but on a social and human level as well. The influence of the administrative judiciary in Egypt dates back to the founding of the Egyptian State Council in 1946.
The ruling sanctions a constitutional obligation that falls upon the shoulders of all branches of state authority. This obligation stems from Article 16 of the 2014 Constitution. The article requires the state to honor the martyrs of the nation, whether from wars or from popular revolutions, and to care for veterans and those wounded in military and counterterrorism operations, along with their families, and with the families of those missing in action and their equals. It also calls on the state to encourage the contributions of civil society organizations towards achieving these objectives. Civil society, in other words, is a partner of the state, not its rival, when it comes to fulfilling the state’s legal and constitutional obligations.
The ruling was issued specifically about martyrs of the Egyptian Army in the 1973 October War. Yet, the specifics of the case addressed in the ruling does not alter the obligation to honor all martyrs of the nation, including Egyptians and other Arabs who fought with the Egyptian Army to liberate Egyptian lands from occupation. The ruling affirms that, “not a day passes in Egypt that a new banner is not added to the ranks of the nation’s martyrs. Thousands of martyrs raise banners that bear their precious blood so that the flag of the nation remains aloft”.
The nation’s martyrs have been honored throughout history, whether they fell struggling against the violent occupier, the wrongful aggressor, or in the nation’s revolutions; and, particularly the revolutions of January 25, 2011 and June 30, 2013. We believe that the duty to honor martyrs extends to those who died valiantly defending the concerns and aspirations of the Arab nation and its liberation from colonizers, occupiers, and tyrants. Although the court’s ruling does not refer to them directly, this is because it is limited to adjudicating on the specifics of the case presented before it.
Honoring the nation’s martyrs instills lofty and powerful principles exemplified by altruism, self-sacrifice, leading by example, giving of oneself, patriotism, and commitment. Within the Egyptian society, these will all work to fortify the nation against assaults of any kind. These principles are the means by which the state –through its citizens– can confront vicissitudes, plots, and terrorist threats with total confidence and conviction. Ultimately, the ruling’s powerful expressions highlighted the demands for loyalty to the martyrs of the nation, and for fulfilling the objectives for which they sacrificed their lives.
The ruling’s essence, based on its structure and content, its letter and its spirit, is that the right of the nation’s martyrs –whether they died at war, in popular revolutions, or confronting terrorism and other catastrophes– is in every way a constitutional right. Honoring the nation’s martyrs and caring for their spouses, children, and parents through every possible means is not a courtesy extended by the state, or an act of benevolence, but an obligation of the state. It should manifest in every state apparatus and institution, as well as in the state’s participation in meeting the demands of civil society organizations. Indeed, at a time when some states are viewing civil society with doubt and suspicion, the ruling took pains to affirm the state’s role in protecting rights and freedoms.
It is unacceptable for any law concerning the rights of martyrs and their families to limit that right and infringe upon its core or essence, or to invalidate or detract from it. No regulation or administrative decision of any kind ought to obstruct, detract from, or render less meaningful the honoring of these martyrs.
 It is worth pointing out that this is the same division of the court that issued a ruling calling for the invalidation of the Maritime Border Agreement between Egypt and Saudi Arabia, thereby upholding an Administrative Court ruling on the matter.